This paper will examine the constitutional power of the states and the federal government to resist the spread of AIDS, specifically through mandatory testing for HIV and quarantining those persons who have AIDS or are HIV-positive.
The power of the states to mandate compulsory testing for HIV is derived from their inherent powers to govern, also known as their "police powers," which provide the ability to promulgate reasonable laws necessary to preserve public order, health, safety, welfare, and morals. With regards to the public health, state authority is only limited by the extent to which the federal government has legislated in the particular area (in which case the federal laws will "preempt" the state laws) and to the extent that the state laws interfere with constitutionally protected substantive and procedural rights.
Two areas of concern arise in the context of mandatory testing for HIV: reasonable search under the Fourth Amendment and Equal Protection under the Fourteenth Amendment. Under the Fourth Amendment, a government action constitutes a search if 1) a person exhibits a subjective expectation of privacy in the thing being searched, and 2) this expectation is reasonable and recognized by society as a whole. It is fairly obvious that a person has a reasonable and widely recognized expectation of privacy in his own blood and other bodily fluids while they are still in his body. Under the Fourth Amendment, searches are unlawful only if they are unreasonable; the reasonableness of an administrative search, subject to a less stringent standard than a criminal search since its purpose is regulatory rather than to obtain criminal evidence, is determined by balancing the government's interest in searching against the intrusion imposed upon the party being searched. It has been held that such intrusions are reasonable if they are conducted for the purpose of protecting the public from the spread of disease.
On the other...